Waegli v. Caterpillar Tractor Co.
| Decision Date | 09 March 1977 |
| Docket Number | No. 40835,40835 |
| Parties | James E. WAEGLI, Appellant, v. CATERPILLAR TRACTOR CO., a corporation, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The party against whom a motion for a directed verdict is directed is entitled to every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.
2. There is no duty to warn of a known danger.
3. Where the existence of a defect in a product is known to the claimant prior to an accident and injury, no basis for recovery under the doctrine of strict liability in tort exists.
Herbert J. Friedman, of Friedman & Berry, Lincoln, for appellant.
Cline, Williams, Wright, Johnson & Oldfather, Knudsen, Berkheimer, Endacott & Beam, Barlow, Johnson, DeMars & Flodman, Lincoln, for appellees.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
This action for personal injuries was dismissed by the trial court at the conclusion of the plaintiff's case-in-chief. Plaintiff appeals. We affirm.
Plaintiff James E. Waegli was on the date of accident a 22-year-old heavy equipment operator, engaged specifically by Seward County to operate a Caterpillar model 613 tractor scraper. The 613 consists of a power or tractor unit, mounted on two wheels, with the engine and cab in front of the wheels and a large scraper unit attached to the power unit mounted on two wheels to the extreme rear of the unit.
The machine is designed to gather and transport approximately 11 cubic yards of earth by means of a hydraulically operated blade and an elevating unit. The combined unit is nearly 32 feet long and, unloaded, weighs approximately 27,000 pounds.
Plaintiff, who will be referred to as Waegli, was hired by Seward County in July 1971, and received approximately 11/2 hours of instructions in the operation of the unit.
The 613 sold to the county was not equipped with a parking brake which was an optional item. The evidence discloses that the subject of equipping the machine with a parking brake was not discussed with Seward County by the other defendants.
On September 15, 1971, Waegli and other employees of the county were engaged in road repair in rural Seward County. An old bridge had been removed and replaced with a steel culvert. Fill dirt was being scraped and hauled in the 613 to the culvert site where a road grader operated by another county employee would level and smooth the fill.
In some manner not described in the evidence, the road grader slipped off the road surface into a ditch from where it could not be extricated under its own power.
Waegli saw the grader in difficulty, dumped his load, and drove to the grader. He backed the 613 close enough to the grader so that a chain might be fastened to pull it out. The 613 did not leave the road surface.
After stopping the engine of his unit, Waegli hydraulically dropped the bowl, or scraping blades and compartment designed to hold the fill dirt, to the ground, and dismounted. The chain was hooked from the 613 to the grader, and the grader was pulled onto the road surface. After pulling the grader about 30 feet, the units were stopped, the transmission of the 613 was placed in neutral, the bowl again was lowered to the roadway, and the blade was pushed into the ground about 4 to 6 inches. Waegli again dismounted. He unhooked the chain from the 613, and, with his back to the 613, removed the chain from the grader. The 613 then rolled back and pinned Waegli between the two machines, injuring him seriously. The evidence discloses that the grade in the area was 7 percent rise from horizontal to the south. The 613 faced south and rolled back to the north.
This action was brought against the Caterpillar Tractor Co., Johnson Manufacturing Company, Lubbock, Texas, and the supplier Lincoln Equipment Company on three theories: Strict liability in tort, breach of warranty, and negligence. Seward County was joined by virtue of the workmen's compensation paid plaintiff and is not a part of this appeal. The trial court sustained a demurrer to the second theory. The case was tried on the remaining two theories.
Waegli here assigns as error the dismissal of his petition. The defendants asserted as grounds for the directed verdict 14 separate specifications. The trial court entered an order without specifying the grounds on which the dismissal was entered.
In Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971), this court held that as a condition...
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